In Lüneburg, an unremarkable city in northern Germany, what could turn out to be the last ever Holocaust trial is underway. It will mark the beginning of the end of a torturous, 70-year chapter in the history of the German judiciary.
On a trip to Japan earlier this year, Chancellor Angela Merkel had some advice for her hosts on the subject of neighbourliness. The best way for Japan to ease tensions with the rest of East Asia, she told an audience of academics, would be to face your past and own up to the crimes of the Second World War. Look how well Germany reconciled with the rest of Europe, she declared, that was partly because "there was a great willingness to call things by their name."
Even as the Chancellor was offering this wisdom, this trial was being prepared in Lüneburg that throws into doubt her neat version of how post-war Germany dealt with its past. Three months after Merkel joined other world leaders and a handful of survivors to commemorate the 70th anniversary of the liberation of Auschwitz, a 93-year-old man went on trial for his actions there. If Germans really have confronted the horrors of Nazism, how can it have taken nearly three-quarters of a century to bring one of its alleged criminals to trial, a man who has been living openly among them all this time?
Cornelius Nestler and Thomas Walther, the lawyers representing 50 Auschwitz survivors and co-plaintiffs in the trial, have made clear how important they consider its historical context. "The main object of this criminal procedure is also to document the decades-long failure of the judiciary," they said in a statement released on 27th April on behalf of their clients.
The defendant, Oskar Gröning, was a 22-year-old apprentice banker whose job was to count money taken from Jews and feed it into Germany's war economy. Later, the "Accountant of Auschwitz" became one of the few SS officers to give interviews, in which he recounted his experiences and admitted his participation. Gröning began the trial by acknowledging his "moral guilt," as he had done in a BBC interview in 2005. "This moral guilt I confess, with remorse and humility before the victims," he told the court on 21st April, in front of several Auschwitz survivors who appeared as co-plaintiffs. But he failed to concede any legal culpability. "You must decide on the legal guilt," he said, addressing the judges.
When Gröning gave his BBC interview in 2005, the German judiciary agreed with him. The legal consensus from the establishment of the new Germany in 1949 all the way to 2011 was this: Auschwitz itself was no more than a camp—whether any crimes happened there depended on what could be proved about the actions of individuals who worked there. Thomas Walther says the crucial issue is whether you see Auschwitz as one crime or thousands: "What exactly is the crime? Is it Auschwitz itself? Or is it the individual transport train?"
The 71-year-old Walther, who works at Germany's central office for the investigation of National Socialist crimes in Ludwigsburg, was instrumental in causing a crucial redefinition of the law when he successfully helped to bring charges against John Demjanjuk in 2011. The 91-year-old Ukrainian was convicted by a Munich court on 27,900 counts of accessory to murder for being a guard at the small concentration camp of Sobibor. That precedent opened the way for a whole new wave of investigations into the last living SS officers, and Gröning, who had made his story public himself, was duly charged with 300,000 counts of accessory to murder. The charge relates to the approximate number of Jews gassed in the so-called "Hungarian Holocaust," a 57-day period in 1944 during which Auschwitz operated at maximum capacity. For strategic legal reasons, Gröning is being prosecuted only for his role in this.
Given his age and frailty, Gröning is unlikely to be locked up even if he is found guilty. But this is irrelevant—the importance of the trial is much bigger. In Germany's legal circles, there has been a growing consensus that the trials conducted by the Allies in Nuremberg in 1946 and in Frankfurt in 1963 were flawed—for good political or legal reasons, maybe, but still flawed. Too many Nazis were let go or not pursued. The historian Andreas Eichmüller once calculated that of the 6,500 SS officers who were stationed at Auschwitz and survived the war, only 49 were ever convicted of any crime. There may be plenty of memorials in Berlin, but judicially Germany is yet to confront the Holocaust. Given the age of the other potential defendants, this trial may represent the last chance for Germany's jurists to assuage the sense that something important was left undone by their predecessors.
The story of Reinhard Strecker, an activist who dedicated his life to uncovering the Nazi past of those in power, is enough to disabuse anyone of the idea that 1950s Germany was in the mood for confronting its past. This was a country that wanted to sell the clean-slate dogma of the "Stunde Null" ("zero hour")—the accepted doctrine was that the old Germany had ceased to exist, and was replaced in 1949 by a new state with a new constitution, a new legislature, a new capital city, new political parties, and a new currency. But Strecker, a young man who travelled Europe soon after the liberation, returned in 1954 to find officialdom riddled with former members of the Nazi party. The notorious "law 131" of 1951 had served as a general amnesty for all Nazi-era state officials who had been sacked in 1945, giving them the right to a state job in the new republic. According to Ingo Müller, over 90 percent of them did return to work around the country. This "re-Nazification" was particularly effective in the justice system—in the late 1940s, the occupying Allies quickly found that it was going to be impossible to re-establish the judiciary without former members of the Nazi party. Forced to incrementally relax the rules on who could become a judge, by 1948, the different Allied authorities were admitting that 80 or 90 percent of judges and prosecutors were former Nazi party members. This went as high as the Justice Ministry—according to a 2013 government study by an independent panel of historians, as late as 1966 some 60 percent of leading administrators in the ministry were former Nazi party members.
This created what the legal historian Müller called an "intellectual continuity." The Nazi laws that related to racial segregation had been lifted, but the rest of the legal system remained in place, and as the ideological war between West and East Germany reached its height, some 7,000 alleged communists in West Germany found themselves being tried on the same charges of sedition against the state—occasionally facing the same judges they would have done before the war.
It was in this newly-charged political climate that Strecker began collecting Third Reich documents that detailed the corrupt rulings—overtly political or racist verdicts, curtailing of defendants' rights, unnecessarily harsh penalties—passed by judges who were still in office after 1945. Often denied access to state archives in Germany, he travelled to Poland and elsewhere to find evidence. After nearly a decade of laboriously photographing and collating documents—and an unsuccessful petition to the Bundestag to have the Nazi past of prominent jurists examined—Strecker in 1960 showed his documents in an exhibition entitled "Unpunished Judiciary". It was a bald title, and not much of an exhibition—dozens of bulging ring-binders laid out on tables in a student bar in the city of Karlsruhe—but it shattered the post-war silence surrounding Germany's past like a bomb. The exhibition toured the country, the press descended, Federal Attorney General Max Güde personally verified the documents' authenticity, and Strecker was invited to show his exhibition in this country in the House of Commons. "I have read unbelievable judgements [from the Third Reich] that have left me with a deep sense of shame about how the judiciary complacently allowed itself to be abused," Güde said in 1959. "[Strecker's] investigations show that very many judges and lawyers are a morally unacceptable liability for the judiciary."
Meanwhile then-Chancellor Konrad Adenauer's government press office attempted to discredit Strecker by briefing that he was a communist in the pay of the Soviet Union. Strecker further irritated the Chancellor by compiling a book of documents all about his most senior advisor—Hans Globke, a Nazi jurist instrumental in framing the first anti-Semitic laws in Germany in the early 1930.
To appreciate exactly how problematic Strecker and his ring-binders were to the first Chancellor of the Federal Republic, one has to understand Adenauer's political focus. As Müller puts it, "Adenauer was not a Nazi and never suspected of being a Nazi. But he saw what was going on. About 95 percent of Germans had been Nazis—Hitler would have been re-elected in any free election. But appointing Globke was a clever symbolic act... Globke was a signal to all the Nazis: 'If you swear off it and take part in this democracy, then we'll draw a line under it and it will all be forgotten.'"
Aware of the Nazi undercurrent, Adenauer protected Nazis so the Germans who harboured a bitter sense that a victor's justice had been imposed on them would stay on board for this newfangled democracy. Adenauer remains a towering figure in the founding of modern Germany—a father figure who presided over the "economic miracle"—but recently the extent of his determination to ignore the past for the sake of renewal has revealed a darker side. Der Spiegel magazine uncovered a memo from 1962 showing he wanted new diplomatic ties with Israel to be contingent on Israel suspending its pursuit of Nazi criminals. "This is intolerable for the reputation of Germany in the world," Adenauer wrote. In 2006, it was further revealed that both the CIA and its German equivalent the BND knew the whereabouts of Adolf Eichmann, one of the chief architects of the Holocaust, in 1958, two years before he was arrested by Mossad in Argentina. The historian Jeffrey Herf once summed up Adenauer's choice: "One could have either democracy or justice, but in the early days, certainly not both."
It was only after Adenauer's tenure ended that Germany began prosecuting Nazis in earnest. This culminated in the Auschwitz trials in Frankfurt in the 1960s, brought about by the Hesse state prosecutor Fritz Bauer. Bauer's ambition was to put the Auschwitz system itself on trial—to prove that since its existence was a crime, anyone who worked there must have been a criminal. "One of the most important tasks of this trial is not only to present the horrendous facts," he told the court at one stage, "but also actually to teach ourselves something that we here in Germany have completely forgotten in the course of the last 100 years... it is the point of this trial to say: 'You should have said no.' "
But he was hampered by a legal paradox. Germany's laws could not comprehend a crime like the Holocaust, and bound by the German criminal code's definition of murder, Bauer had to prove that the defendants had shown cruelty, and therefore intent. In practice that meant he could only convict SS officers if they had acted beyond the Auschwitz system—in other words, killed or tortured people they were not supposed to. In effect Bauer and his team were forced to adopt Auschwitz's regulations as standards by which to assess defendants' actions. As Rebecca Wittmann describes in her account "Beyond Justice," this led to a bizarre session at the Frankfurt trial when Nazi-era judges were brought in to testify on what was and wasn't against the rules in concentration camps. Far from being on trial, the Auschwitz system became the legitimate framework that the defendants' actions were measured against. Bauer's argument negated his ambition for the trial, and he knew it. Oskar Gröning's trial in 2015 is an attempt to redress this.
In the 1960s, the German public saw so-called "excess perpetrators" like Wilhelm Boger given life sentences, but those who merely followed the rules were acquitted or given lesser sentences. Wittmann writes, "The disappointing result was that defendants who had selected victims for death in the gas chambers at the platform or had carried out ordered executions at the 'Black Wall' [a notorious execution spot in Auschwitz] or had reluctantly given lethal injections at the camp hospital were not convicted of murder."
At the time, few in Germany felt that this was an unsatisfactory result. Political theorist Hannah Arendt wrote in Eichmann in Jerusalem, "the German people ... did not particularly mind the presence of murderers at large in their country, since none of them were likely to commit murder of their own free will."
Gröning fits this view—Arendt's famous phrase "the banality of evil" seems to be well-suited to the scrupulous accountant he appears to be—which is precisely why his trial is so important. He is on trial simply for being there, for not saying no. Gröning has already admitted he was stationed at the platforms as the trains arrived, as part of the Gefangeneneigentumsverwaltung—the squad that administered prisoners' belongings—where he directed prisoners to collect the suitcases and clear away the bodies of those that had died on the trains. As far as the co-plaintiffs' lawyer Thomas Walther is concerned, this makes him an accessory to murder. "Everything they did was necessary to making sure these human beings who arrived in the morning were gassed and burned and turned to ash in the evening," says Walther. "It was a factory for human ash, and they were all part of the process."
Walther believes Fritz Bauer created an historic opportunity in Frankfurt, but it was slammed shut again afterwards. "And all the prosecutors that came after that remained stupidly loyal to the dogma that Auschwitz was not one crime, but many smaller crimes, and they never switched on their basic legal understanding to ask why."
If Gröning is acquitted or the case against him dropped, it would mean that the only person ever to be convicted in a German court for the routine killing of the concentration camp system would remain John Demjanjuk, himself a concentration camp inmate more or less forced into service as a guard. As Müller puts it, "It simply cannot be that you convict one single person for the whole of the Holocaust, and it's this half-literate Ukrainian prisoner-of-war. At least Gröning is German."